Hall v. Eklof Marine Corp.

• Decision Date: 13 October 2004
• Docket Number: No. CIV.A. 02-162L.,CIV.A. 02-162L.
• Parties: Thomas HALL, Plaintiffs, v. EKLOF MARINE CORPORATION; Thor Towing Corporation; Odin Marine Corporation; Leslie Warren; and Gregory R. Aitken, Defendants.
• Court: U.S. District Court — District of Rhode Island

339 F.Supp.2d 369

Thomas HALL, Plaintiffs, v. EKLOF MARINE CORPORATION; Thor Towing Corporation; Odin Marine Corporation; Leslie Warren; and Gregory R. Aitken, Defendants.

No. CIV.A. 02-162L.

United States District Court, D. Rhode Island.

October 13, 2004.

W. Mark Russo, Esq., Christopher M. Mulhearn, Esq., Ferrucci Russo P.C., Providence, RI, for Plaintiffs.

Herbert B. Hulberg, Esq., New York City, Matthew Oliverio, Esq., Raymond A. Marcaccio, Esq., Providence, RI, Thomas M. Russo, Esq., Freehill, Hogan & Mahar, LLP, New York City, Deming E. Sherman, Esq., Richard A. Sherman, Esq., Edwards & Angell, Providence, RI, for Defendants.

OPINION AND ORDER

LAGUEUX, Senior District Judge.

This matter is before the Court on Defendants' Renewed Motion for Summary Judgment on all five counts in the Complaint. Thomas Hall ("Plaintiff") has brought this lawsuit against Defendants Eklof Marine Corporation, Thor Towing Corporation, Odin Marine Corporation, Leslie Warren, and Gregory R. Aitken ("Defendants"). The corporate defendants are three affiliated companies, who owned and operated the tugboat Scandia and the barge North Cape in January 1996, when it ran aground and spilled 828,000 gallons of home heating oil in Rhode Island and Block Island Sounds. Defendant Leslie Wallin, a New Jersey resident, was a shareholder, director and president of Eklof, and was responsible for overseeing the maintenance and repairs on the vessels. Defendant Gregory R. Aitken, a New York resident, was an Eklof employee and the captain of the Scandia on January 19, 1996.

Plaintiff is a lobsterman who operates a lobster fishing boat, the F/V Manning, in Narragansett Bay. Plaintiff's claim is that the so-called North Cape Oil Spill caused a diminution in his lobster catch, resulting in a loss of income starting two years after the event.

Plaintiff's Complaint contains five counts. Count I alleges that Defendants are strictly liable under the Rhode Island Environmental Injury Compensation Act ("Rhode Island Act"). R.I. Gen. Laws § 46-12.3-1 et seq. (1956). Count II alleges that Defendants were negligent and seeks recovery under the same Act. R.I. Gen. Laws § 46-12.3-4. In Count III, Plaintiff alleges that Defendants were guilty of common law negligence. In Counts IV and V, Plaintiff prays for punitive damages.¹

Defendants contend that Plaintiff has not shown a causal connection between the North Cape Oil Spill and the diminution in his lobster catch. They argue further that, even if Plaintiff can establish causation, his loss cannot be quantified because it is impossible to determine which losses are due to the Oil Spill and which are due to other environmental factors. For the reasons that follow, this Court concludes that Plaintiff has not presented sufficient evidence to establish that the North Cape Oil Spill actually and proximately caused the diminution in his lobster catch. Therefore, this Court grants Defendants' Renewed Motion for Summary Judgment on all Counts of the Complaint.

Defendants have also moved to strike the testimony of Plaintiff's experts, fisheries biologist Kathleen Castro and oceanographer Dr. Richard Crawford. Defendants filed a Motion in Limine to exclude Ms. Castro's testimony under Rule 702 of the Federal Rules of Evidence. Because the Court grants Defendants' Motion for Summary Judgment, it need not resolve Defendants' Motion in Limine.

Defendants moved to strike Dr. Crawford's testimony because, in contravention of Rule 26 of the Federal Rules of Civil Procedure, Plaintiff failed to disclose Dr. Crawford as an expert witness until July 8, 2003, the day before the extended discovery deadline expired. Defendants' motion was granted by this Court, from the bench, on September 29, 2003.

BACKGROUND

I. Factual Synopsis

In considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. Springfield Terminal Ry. Co. v. Canadian Pac. Ltd., 133 F.3d 103, 106 (1st Cir.1997)(citing Blanchard v. Peerless Ins. Co., 958 F.2d 483, 490 (1st Cir.1992)). With the above rule in mind, the Court recites the following factual account.

This action arises out of the North Cape Oil Spill, which occurred on January 19, 1996, off the southern coast of Rhode Island. The tug Scandia, with the barge North Cape in tow, left Bayonne, New Jersey, for Providence, Rhode Island, on January 18, 1996. The North Cape was fully loaded with approximately ninety-five thousand barrels — four million gallons — of number two home heating oil.

The day before the Scandia and North Cape commenced their voyage, a severe winter storm was forecast to pass over Rhode Island's coastal waters on January 19, 1996. Specifically, the forecast predicted winds of thirty-five knots and seas rising to twelve feet. Early the next day (the day of the Oil Spill), the United States Coast Guard issued a storm warning, predicting severe weather for the area within twenty-five nautical miles of Watch Hill, Rhode Island, and Chatham, Massachusetts. Unlike the other vessels in Defendants' fleet, the Scandia and North Cape continued their journey en route to Providence.

During this journey, Defendants were operating the North Cape without an anchor windlass. The anchor windlass is a large drum and cable assembly that was part of the equipment needed to raise and lower the North Cape's six-thousand pound anchor. The windlass was equipped with a braking and brake release mechanism that, when operable, enabled the crew to easily lower the anchor. Defendants operated the North Cape without this windlass on the day of the Oil Spill because the windlass was broken and in need of repair. Instead, they used a shackle, wire and rope to create a makeshift rigging to hold the anchor in place. A steel anchor cable was replaced with polypropylene rope, which was not secured to the barge. The members of the crew were instructed to deploy the anchor only in case of an emergency because the makeshift anchor rigging made it extremely difficult to deploy.

In fact, as the events of January 19, 1996, unfolded, the crew was unable to lower the anchor because of the weather conditions that existed that day. As a result, both the Scandia and the North Cape grounded off Moonstone Beach when the Scandia caught fire. The North Cape discharged 828,000 gallons of oil into Block Island and Rhode Island Sounds causing substantial damage to the environment and killing lobsters, other marine life, and migratory birds. It was the largest oil spill in Rhode Island's history.

The Oil Spill contaminated a stretch of approximately nine miles along the South County beaches from Point Judith to Charlestown beach, an area known as the Nebraska Shoals. Federal and State authorities identified these waters as "the affected area" and closed the area to lobster fishermen until June 30, 1996. The affected area did not extend into Narragansett Bay.

On September 9, 1996, the National Oceanic and Atmospheric Administration, the Rhode Island Department of Environmental Management, the United States Department of the Interior, and the United States Fish and Wildlife Services released a joint Restoration Plan and Environmental Assessment ("Restoration Plan") for the North Cape Oil Spill. The Restoration Plan reported that authorities removed nearly 2.9 million dead and moribund lobsters from southern Rhode Island beaches following the Oil Spill, which killed a total of approximately nine million lobsters.

One of the Restoration Plan's objectives was to counteract the effects of the North Cape Oil Spill on Rhode Island's lobster resources by replacing the lost lobsters. As part of this plan, which commenced in the year 2000, 1.5 million female lobsters were placed in the waters off the Nebraska Shoals and in Narragansett Bay in an effort to replenish the population. Defendants and other interested parties paid approximately eleven million dollars to implement the Restoration Plan.

Plaintiff had fished for many years in central Narragansett Bay, an area with an approximate boundary, at its southernmost point, seventeen miles north of the Nebraska Shoals. Plaintiff contends that because of the North Cape Oil Spill, his annual catch diminished from 45,743 pounds of lobster landed in 1996 to 20,845 pounds landed in 2000, although he fished for relatively the same number of days each year. Plaintiff maintains that the lobsters killed by the Oil Spill would have otherwise migrated to his accustomed fishing ground in the middle region of Narragansett Bay, and subsequently been caught in his traps.

The North Cape Oil Spill was a catastrophic environmental disaster that resulted in significant and substantial damage to Rhode Island's lobster industry. However, it is undisputed that other factors unrelated to the Oil Spill, such as over-fishing, increased predation, disease, and water temperature fluctuations also have had negative effects on that local industry.

II. Procedural History

Plaintiff filed his Complaint in the Rhode Island Superior Court on January 16, 2002. Defendants removed the case to this Court on April 5, 2002, pursuant to 28 U.S.C. § 1441, based upon the parties' diversity of citizenship and an amount in controversy of over $75,000. 28 U.S.C. § 1332(a)(1).² Following removal, this Court issued a Scheduling Order stating that discovery would close on December 20, 2002. After the close of discovery, Plaintiff filed a motion to enlarge the time for discovery. The Court denied this motion due to Plaintiff's lack of diligence in conducting discovery. On March 6, 2003, Plaintiff moved for reconsideration, which was again denied because Plaintiff had not provided any justification for disregarding the Court's Scheduling Order. In the meantime, Defendants had also moved for summary judgment, which Plaintiff opposed. Defendants also moved to strike the affidavit of Plaintiff's sole expert witness, Kathleen Castro. That motion was scheduled for...